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THIRD
SECTION
CASE OF
PLOTNICOVA v. MOLDOVA
(Application
no. 38623/05)
JUDGMENT
STRASBOURG
15
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Plotnicova v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall, President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38623/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Ms Lidia Plotnicova (“the
applicant”), on 17 October 2005.
- The
applicant was represented by Mr R. Tocan, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that she had been detained in
inhuman conditions in breach of Article 3 of the Convention and that
her rights under Article 6 § 3 of the Convention had been
breached.
- On
12 January 2009 the Court decided to communicate the application to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (former
Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Chişinău. During
the 1990s she became well known in business circles in Moldova and
was designated “Business person of the year” in 1999.
- During
1999-2001 the applicant borrowed money from four individuals, to a
total amount of 894,955 Moldovan lei (MDL), (approximately 79,000
euros (EUR) at the time). She told her creditors that she would use
the money to import cosmetic products from a French company to sell
in her cosmetics shop in Chişinău. However, she did not
repay the money and interest within the time-limits agreed with her
creditors. The applicant submitted that she had repaid part of her
debt before the proceedings against her were initiated and that the
delay in repaying the debt was due to delays in importing the
cosmetic products to Moldova. It is not disputed by the parties that
the applicant never denied the existence of her debts and that she
confirmed them in writing and before the authorities during the
criminal proceedings.
- Following
criminal complaints by the creditors, on 11 November 2002 a
criminal investigation was initiated against the applicant. She was
accused of obtaining the money fraudulently, without any intention of
repaying it. According to the applicant, a person with influence over
one of her creditors wanted to obtain a contract with the French
company and threatened her with imprisonment if she refused to
transfer her business with that company to him. The criminal
proceedings against her were used as a means of destroying her
business.
- On
3 February 2003 the applicant was declared a wanted person and on
4 February 2003 a court remanded her in custody pending trial.
Neither the applicant nor her representative was present.
- According to the applicant, on 13 March 2003 she was
arrested and taken to Chişinău police headquarters, where
she was detained throughout that day, without any record of the
detention being made. The Government submitted that her detention had
been duly recorded. Because she had serious health problems, an
ambulance was called and she was taken to hospital at the doctors’
request. The applicant spent seven days in hospital under police
supervision. On 20 March 2003 the applicant was released from
hospital, was rearrested and placed again in the Chişinău
police headquarters. She felt ill on the same day and an ambulance
was called to treat her. On 11 April 2003 the applicant’s
daughter complained to the Chişinău Prosecutor Office about
the alleged refusal to allow the applicant’s transfer to a
hospital on 20 March 2003. The applicant did not inform the Court of
any reply received or of any complaint to the higher prosecutor or
the court in relation to that complaint. She was transferred to
prison no. 13 on 28 May 2003.
- On
2 April 2003 the investigator sent a rogatory commission to the
French authorities, asking them to verify whether the applicant had
had contacts with the cosmetics company and whether she had been its
representative in Moldova, as well as whether she had purchased
cosmetic products from that company in order to import them to
Moldova. On 26 July 2004 the applicant requested that “two
volumes of materials from France” be added to the file. The
prosecutor supported her request, on condition that the materials be
translated. The court agreed, but a translation was apparently never
added to the file.
- The applicant requested that witnesses on her behalf
be heard. In particular, on 1 November 2003 she asked for O.G., the
son of one of her creditors, to be heard, since he had allegedly
received large sums of money from the applicant on account of the
debt she owed his mother. Moreover, she was in frequent contact with
him, all of which proved, in the applicant’s opinion, that she
was not hiding from her creditors but was trying in good faith to
honour her obligations. The applicant submitted copies of receipts
from her creditors confirming that she had repaid them various sums
of money before the criminal proceedings were initiated (for
instance, she repaid USD 5,000 on 13 April 2000, USD 300 on 15
January 2001, USD 500 on 15 December 2001 and USD 500 on 15
January 2002; in addition she repaid many smaller amounts to S., one
of her creditors, on numerous occasions throughout 2001).
- On 27 July 2005 the applicant was convicted and
sentenced to ten years’ imprisonment. The court relied on the
statements of various witnesses attesting that the applicant had
taken money from them and never returned it, absconding from them. It
did not mention anything about the results of the rogatory commission
results, but relied on “information from the Ministry of
Internal Affairs”, according to which the applicant was not a
representative of the French company in Moldova. In her appeal,
the applicant noted, inter alia, that she had not been given a
translation of the materials obtained from the French authorities.
She repeated her request during the hearing of the Chişinău
Court of Appeal, adding that the lower court had noted the
impossibility of examining those documents in the absence of a
translation. She referred to the receipts from her creditor S. as
evidence of the fact that they had been in frequent contact
throughout 2001 when she repaid him sums of money on account of her
debt (see paragraph 11 above). She also noted that on 30
November 2001 she had travelled together with S. to the customs to
meet a truck full of merchandise imported from the French company,
and that this had been confirmed during the first-instance court
hearing. The applicant also declared that she had asked the
investigator to summon O.G. as a witness in order to confirm that she
had repaid large amounts of money to him as the son of one of her
creditors. She further submitted that she had been detained, together
with seven others, for more than two years in a small cell measuring
10 square metres, and that the cell was insufficiently lit,
ventilated or equipped with elementary necessary items. She also
complained that she had been subjected to ill-treatment while in
detention, following which she was admitted to hospital with a broken
arm. She asked for her health problems to be taken into
consideration, as well as the inhuman conditions of detention in
which she had been detained for a lengthy period of time.
- The Chişinău Court of Appeal scheduled a
hearing for 1 December 2005. According to the transcript of that
hearing, at the applicant’s lawyer’s request the court
agreed to add to the file a recommendation issued by the French
company and addressed to the court, according to which the applicant
had been the company’s representative in Moldova from 1994-2002
and had been recognised as a serious and responsible business person,
whose activity had allowed the French company to expand its business
in Moldova. During the hearing of 1 December 2005 the applicant
requested “to see the set of documents from France [given that]
the first-instance court stated that the documents had not been
translated, and therefore had not been examined”. The
applicant’s lawyer supported the request, adding that
accounting documents from France had been submitted to the
first-instance court which confirmed the business relationship
between the French cosmetics company and his client, who represented
that company in Moldova. According to the transcript, the court
refused the request, on the ground that the materials referred to by
the applicant had been the subject of examination by the lower court.
- Having examined the parties’ submissions, the
court upheld the lower court’s judgment, finding that all the
arguments raised by the defence had been examined by the lower court
and had been properly rejected as unfounded. In respect of the
applicant’s argument that she had not had the opportunity to
study a translated version of the documents obtained from the French
authorities, the court found that this matter had already been
examined during the hearing before the first-instance court.
- In
his appeal on points of law, the applicant’s lawyer noted the
lower courts’ refusal to hear witnesses on her behalf; the fact
that the courts remained silent about the evidence that she had
already repaid an important part of the debt to her creditors, which
excluded an intention to evade payment; that the file was not
complete, certain of the documents in the file proving her innocence
not having been forwarded by the first-instance court to the Court of
Appeal; and that two of the four alleged victims had not appeared at
the hearing before the Chişinău Court of Appeal, even
though she considered their presence mandatory.
- The
applicant’s lawyer considered that she was being prosecuted for
her inability to repay her debts, contrary to Article 1 of Protocol
No. 4 to the Convention. He also referred to the information from the
Customs Department, confirming that on 29 November 2003 the company
in which the applicant worked as executive director had imported
cosmetic products from the French company, and therefore was pursuing
precisely the type of activity for which the applicant had borrowed
the money. He also referred to the contract between the French
company and the applicant, according to which the latter acted as the
exclusive representative of that company in Moldova. He finally
referred to awards received by her in 1999-2001, including “Best
business person of the year 1999”.
- On
28 March 2006 the Supreme Court of Justice upheld the lower courts’
judgments. The court found that the applicant had borrowed large sums
of money and then avoided contact with her creditors and refused to
repay her debts. She did not deny having borrowed the money, but
explained that she had invested the money in the cosmetic products
and was not yet able to repay it. Moreover, the applicant presented
herself to her creditors as a credible person – the official
representative of the French company in Moldova - while in fact she
was not such a representative. She thus misrepresented to the victims
the nature of the relationship into which they had entered. Even
though she had always confirmed in writing her debts owed to the
victims, the applicant would avoid meeting them and had no intention
of paying.
- The
judgment of the Supreme Court of Justice was final. An extraordinary
appeal by the applicant to the Supreme Court of Justice was dismissed
on 18 December 2006.
- On
26 March 2009 the applicant was released from prison.
- The
applicant stated that she had returned some of the money she had
borrowed, but was unable to return the remainder because her economic
activity had been interrupted by her arrest.
II. RELEVANT REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF
TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
- The relevant parts of the report of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) on its visit to Moldova between 20 and
30 September 2004 (CPT/Inf (2006) 7) read as follows (unofficial
translation):
55. The situation in the majority of prisons
visited, faced with the economic situation in the country, remained
difficult and one recounted a number of problems already identified
during the visits in 1998 and 2001 in terms of material conditions
and detention regimes.
Added to this is the problem of overcrowding, which
remains serious. In fact, even if the prisons were not at full
capacity – as is the case with prison no. 3, in which the
number of detainees was significantly reduced in comparison with that
during the last visit of the Committee – they continued to be
extremely overcrowded. In fact, the accommodation capacity was still
based on an inadequate 2m2 per detainee, which in practice
was often even less.
77. The follow-up visit to Prison no. 3 in
Chişinău did not have a satisfactory result. The progress
found was in fact minimal and limited to some current repairs. The
repair of the ventilation system had been possible primarily through
the financial support of civil society (especially NGOs), and the
space for daily exercise had been created by the efforts of detainees
and their families.
The repair, renovation and maintenance of cells is
entirely the responsibility of the detainees themselves and their
families, who also pay for the necessary materials. They must also
provide their own bed sheets and blankets, the institution being able
to give them only used mattresses.
79. ... In sum, the conditions of life in the
great majority of cells in Blocks I-II and in the transit cells
continue to be miserable. ...
Finally, despite the drastic reduction in overcrowding,
a very high, even intolerable, level of occupancy of the cells can be
observed.
83. Other than in the Lipcani Re-education
Colony for Minors, where the efforts made in this respect are to be
highlighted, the quantity and quality of detainees’ food
everywhere is a source of grave concern. The delegation was inundated
with complaints regarding the absence of meat and dairy products. The
findings of the delegation regarding both the stocks of food and the
menus confirm the credibility of these complaints. Its findings also
confirmed that in certain places (in Prison no. 3 and elsewhere), the
food served was repulsive and virtually inedible (for instance,
insects and vermin were present). This is not surprising, given the
general state of the kitchens and the quality of their equipment.
The Moldovan authorities have always claimed financial
difficulties in ensuring the adequate feeding of detainees. However,
the Committee insists that this is a fundamental requirement of life
which must be ensured by the State to those in its charge, and that
nothing can exonerate it from this responsibility. ...”
- The
relevant parts of the report of the CPT on its visit to Moldova
between 21 and 25 November 2005 (CPT/Inf (2008) 35) read as follows
(unofficial translation):
9. ... As for financial resources, the basic
subsistence needs in the prisons are only partly covered by the State
budget: at the level of 33% in respect of food (meat, milk and eggs
being obtained from humanitarian projects). ...”
- The relevant parts of the report of the CPT on its
visit to Moldova between 14 and 24 September 2007 (CPT/Inf (2008) 39)
read as follows (unofficial translation):
47. The CPT can only welcome the
above-mentioned measures taken by the Moldovan authorities.
Nevertheless, the information gathered by the Committee’s
delegation during the 2007 visit shows that much remains to be done.
In particular, overcrowding continues to be a problem; despite the
fact that all establishments visited were operating well below their
official capacity, and there was on average only two square metres of
living space per prisoner, rather than the standard of four square
metres provided for in Moldovan legislation.
The CPT is convinced that the only viable way to
control overcrowding and achieve the standard of at least four square
metres of living space per prisoner is to adopt policies designed to
limit or moderate the number of people sent to prison. In this
connection, the Committee must stress the need for a strategy
covering both admission to and release from prison to ensure that
imprisonment really is the ultimate remedy. This implies, in the
first place, an emphasis on non-custodial measures in the period
before the imposition of a sentence and, in the second place, the
adoption of measures which facilitate the reintegration into society
of individuals who have been deprived of their liberty.
The CPT trusts that the Moldovan authorities will
continue their efforts to combat prison overcrowding, and that in so
doing they will be guided by Recommendation Rec(99)22 of the
Committee of Ministers of the Council of Europe concerning prison
overcrowding and prison population increases, as well as
Recommendation Rec(2003)22 on conditional release (parole).”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that she had been held in inhuman conditions and
had not been given sufficient medical assistance while in detention.
Moreover, when she was released from hospital on 20 March 2003
the investigator refused her to continue her in-patient treatment.
She relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. As regards the conditions of detention
- The
Government submitted that the applicant had failed to exhaust
available domestic remedies in respect of her complaint under Article
3 of the Convention. In particular, she could have initiated a civil
court action claiming compensation for the allegedly inhuman
conditions of her detention, but she did not make such a claim.
- The
Court reiterates that it has already found that the remedy referred
to by the Government did not constitute an “effective remedy”
in respect of ongoing violations of Article 3 of the Convention (see,
for instance, Rotaru v. Moldova, no. 51216/06,
§ 25, 15 February 2011, and further references made there).
In the present case, the applicant was still in detention at the time
when she lodged her complaint with the Court. It follows that this
objection must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. As regards the other complaints under Article 3
- In respect of the applicant’s complaint
concerning the investigator’s refusal to allow her to have
in-patient treatment on 20 March 2003, the Court notes that the
applicant has not submitted documents confirming the outcome of the
complaint made in this respect at the domestic level (see paragraph 9
above). Even assuming that she had exhausted domestic remedies by
challenging in court any eventual decision taken by the prosecutor,
she lodged her application on 17 October 2005, more than two
years after the relevant events. It follows that this complaint was
introduced out of time and must be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
- In
addition, the Court considers that the applicant has not
substantiated her complaint concerning the alleged insufficiency of
the medical assistance offered to her during her detention. On the
contrary, the file contains documents confirming that she had already
had health problems before her arrest and that thereafter she was
regularly seen by various doctors and followed the treatment
prescribed by those doctors. Therefore, this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
B. Merits
1. The parties’ submissions
- The
applicant complained that the conditions of her detention in prison
no. 13 had been inhuman (see paragraph 12 above). She added that
the food had been inedible, consisting of “a turbid broth with
clumps of cereal in poorly washed bowls” and unpleasant tea.
Her only relief had been the parcels received from her daughter,
which however had not reached her on a number of occasions.
- The Government reiterated that the applicant had not
complained at the domestic level about the conditions of her
detention and had not initiated a court action claiming compensation.
This confirmed that the applicant herself had not felt that her
prison conditions had been substandard.
- They added that during her detention the applicant had
been held in cell no. 106, measuring 10 square metres and
designed to accommodate six detainees; cell no. 107 (14.75 square
metres for eight detainees); cell no. 109 (14.1 square metres
for six detainees); cell no. 110 (14.64 square metres for eight
detainees) and cell no. 111 (14.1 square metres for eight detainees).
Therefore, the statutory minimum of two square metres of personal
space for each detainee had been observed. Each of the cells had
access to daylight via a window and was properly ventilated, had a
water tap and a toilet separated from the rest of the cell by a
barrier. The temperature was kept above 18oC in winter and
detainees could periodically take a shower. Each cell had a radio and
detainees were allowed to install television sets and other
audiovisual equipment allowed by the regulations. Warm food was
served three times a day and was of acceptable quality and quantity.
- The
Government finally referred to the fact that, besides the daily
one-hour exercise to which the applicant had a right, since 9
February 2006 she started working in the cleaning group, thus
spending time outside her cell every day.
2. The Court’s assessment
- The
Court reiterates that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the
nature of things, relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III). Although the
purpose of such treatment is a factor to be taken into account, in
particular whether it was intended to humiliate or debase the victim,
the absence of any such purpose does not inevitably lead to a finding
that there has been no violation of Article 3 (see Peers,
cited above, § 74).
- In
the present case, the Court notes that the applicant gave a detailed
description of her conditions of detention, including overcrowded
cells and poor-quality food. In their observations, the Government
provided specific details concerning the size of the cells and the
number of persons held in them (see paragraph 32 above). The Court
observes that in all the cells in which the applicant was held, the
personal space available to each detainee did not exceed 2.5 square
metres, which is significantly below the minimum of 4 square metres
often referred to by the CPT and the Court (see, for instance, Rotaru
v. Moldova, cited above, § 38).
While the fact that the applicant worked outside her cell would have
provided her with a certain amount of relief, the fact that she would
spend her nights in such a cramped space every night for years
results, in itself, in suffering attaining the minimum level of
severity for the purposes of Article 3 of the Convention. It is also
to be noted that the applicant had spent more than eight months in
such conditions before being allowed to work outside her cell.
- As
regards the Government’s argument about the absence of any
complaints, the Court notes that the applicant made at least one such
complaint to the Court of Appeal (see paragraph 12 above) and that
she apparently received no response to her complaint. It cannot
therefore be argued that the applicant had implicitly recognised that
the conditions of her detention were good.
- The
Court also notes that while rejecting the applicant’s
submissions concerning the quality and quantity of food, the
Government did not provide specific details proving the contrary,
notably in respect of the food available during the initial years of
her detention. The applicant’s description also matches that
given several months earlier by the CPT (see paragraphs 21-23 above).
Accordingly, the Court accepts the applicant’s submission in
this respect.
- In
view of the above, the Court finds that the applicant was detained in
conditions incompatible with the requirements under Article 3 of the
Convention. There has accordingly been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 OF THE
CONVENTION
- The
applicant complained of a violation of Article 6 § 3 of the
Convention because of the courts’ failure to hear witnesses and
to order the translation of key documents.
The
relevant part of Article 6 § 3 reads as follows:
“Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
available domestic remedies in that she had not raised before the
domestic courts the issues of summoning witness O.G. or examining the
translation of any documents from France.
- However,
the Court notes that the applicant made such requests in her appeal
and during the hearing of the Chişinău Court of Appeal (see
paragraphs 12 and 13 above). Accordingly, this objection must be
rejected.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant complained about the domestic courts’ failure to
summon witness O.G. or to allow her to cross-examine witnesses for
the prosecution, and to examine the materials obtained as a result of
the rogatory letter sent to the French authorities. She also claimed
that she had not been able to properly follow the course of the
proceedings and understand the judgments adopted, because they had
not been translated into Russian for her as required by law and she
did not understand Romanian.
- According
to the Government, the prosecuting authorities gathered sufficient
evidence of the applicant’s guilt for the documents obtained
from the French authorities not to be necessary for the indictment.
Accordingly, no reliance was made by the prosecution on the response
to the rogatory letter, and none of the documents obtained in the
process were included in the file or relied on by the courts in their
judgments. The applicant did not make any complaint to the domestic
authorities that she and her lawyer had been unable to cross-examine
prosecution witnesses. On the contrary, the file contains the
applicant’s request for witness F. to be heard, which the court
granted and heard that witness.
- Moreover,
the higher courts noted that the documents had been examined by the
lower court and that there was no need to examine them on appeal. The
applicant never complained during the proceedings that she had not
understood anything, nor requested translation into Russian, having
always signed documents and had the assistance of a Romanian-speaking
lawyer.
- The
Court notes first that in a letter of 17 May 2010 it asked the
Government to submit any decision taken by the first-instance court
or the appellate court accepting or refusing to hear witness O.G. It
received no such decision, although the applicant had expressly
complained about the investigator’s and first-instance court’s
failure to summon O.G. (see paragraphs 11 and 12 above), who in her
opinion could have confirmed that she had not been hiding from her
creditors and that she had been repaying one of them – O.G.’s
mother – throughout the relevant period. The Court reiterates
that it is first of all for the domestic courts to assess the
pertinence and admissibility of witness statements. However, the
absence of any decision by the domestic courts in response to the
applicant’s request to hear O.G. raises in itself a serious
issue under Article 6 of the Convention since it deprived the
applicant of possibly an important means of defence (see, for
instance, Vidal v. Belgium, 22 April 1992, § 34, Series
A no. 235 B).
- The
Court also notes the Government’s argument that the documents
obtained from France in response to the rogatory letter had not been
included in the file because the prosecution considered them
irrelevant. However, it recalls that “... it is a requirement
of fairness under paragraph 1 of Article 6 ... that the prosecution
authorities disclose to the defence all material evidence for or
against the accused” (see Edwards v. the United Kingdom,
16 December 1992, § 36, Series A no. 247 B). Indeed, it was
for the applicant and her lawyer to decide whether they could use the
materials in question in her defence, while the final conclusion as
to the importance of that evidence for the outcome of the case rested
with the courts. It follows that the prosecution’s failure to
provide the defence and the courts with the translated materials
obtained from France – in the absence of a reasoned court
decision to withhold this information from the defence – is in
itself incompatible with the requirement of fairness under Article 6
of the Convention.
- The
above findings are sufficient for the Court to conclude that there
has been a violation of the applicant’s rights under Article 6
§ 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Complaints under Article 5 of the Convention and
Article 1 of Protocol No. 4 to the Convention
- The
applicant also complained of a violation of Article 5 §§ 1
and 3 of the Convention in respect of her allegedly unregistered
detention on 13 20 March 2003 and her subsequent unreasoned
detention. She also complained under Article 1 of Protocol No. 4 to
the Convention that she had been detained for the sole reason that
she had been unable to pay her debts.
- The Court notes that the applicant did not
specifically ask the domestic courts to declare her detention from 13
to 20 March 2003 unlawful. In the absence of a final domestic court
decision, the running of the six-month period for lodging an
application with the Court started from the date when the allegedly
unlawful detention had ended, namely on 20 March 2003. Taking
into consideration that the application was lodged on 17 October
2005, this complaint must accordingly be rejected
pursuant to Article 35 §§ 1 and 4 of the Convention as
having been lodged out of time.
- The
Court further considers that the applicant did not substantiate her
complaint under Article 5 § 3 of the Convention that her
subsequent detention had not been supported by sufficient reasons. It
observes that she described only in a general manner the alleged lack
of reasoning in the domestic courts’ decisions ordering her
detention pending trial, and did not submit copies of those
decisions. Similarly, the complaint under Article 1 of Protocol No. 4
to the Convention is unsubstantiated.
Accordingly,
the Court concludes that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
B. Complaint under Article 6 § 2 of the Convention
- The
applicant complained of a violation of Article 6 § 2 of the
Convention, claiming that the courts had not weighed properly her
right to presumption of innocence against the evidence of her guilt.
- The
Court finds that this complaint is unsubstantiated, since the
applicant did not provide any evidence showing that the courts had
violated the presumption of innocence when assessing her case. It
must therefore be rejected as inadmissible pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
C. Complaint under Article 8 of the Convention
- The
applicant also complained of a violation of Article 8 of the
Convention as a result of the refusal of the prison authorities to
allow her to see her relatives, including to attend her brother’s
funeral, or to send letters.
- The
Court considers that this complaint is unsubstantiated, since the
applicant has not submitted evidence that the prison authorities had
refused to allow her to see her relatives or that her correspondence
had been monitored. Moreover, while her contacts with the outside
world were limited before her transfer to prison no. 13 on 28 May
2003, because of the requirements of the investigation, any implicit
complaint in respect of that period is out of time for the same
reason as that mentioned in paragraph 50 above. Accordingly,
this complaint must be rejected as inadmissible
pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
D. Complaint under Article 1 of Protocol No. 1
- The
applicant complained of a violation of Article 1 of Protocol No. 1
to the Convention, since she had been ordered to pay her creditors in
full, while she had already returned a part of her debt.
- The
Court does not find that there has been any unjustified or
disproportionate interference with the applicant’s property
rights. It notes that the domestic courts examined the applicant’s
arguments against the existence of an obligation to pay her creditors
in full and rejected them in reasoned decisions not affected by
arbitrariness. This complaint must therefore be rejected
as inadmissible pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant submitted that as a result of her unlawful detention and
conviction she had lost her business, which had had a turnover of
100,000 United States dollars (USD) a year, resulting in an
overall loss of USD 600,000. She also claimed EUR 50,000 for the
cost of medical treatment needed for her to recover from the damage
caused to her health by the insufficient medical treatment and the
inhuman conditions of detention. She also claimed EUR 4,500 for the
cost of medicines and food sent her by relatives because the State
had failed to provide her with them in sufficient quality and
quantity.
- The
Government considered that the applicant’s calculations were
unreasonable and unsupported by any evidence.
- The
Court reiterates that it only found a violation of Articles 3
(conditions of detention) and 6 § 3 of the Convention in the
present case. It does not see any reasonable connection between these
violations and the claims for loss of income. It also notes that it
declared inadmissible the complaint under Article 3 of the Convention
concerning the medical assistance given to the applicant while in
detention. It cannot therefore consider her claim for compensation
for medical costs allegedly required for her recovery after her
release. Finally, the Court considers that the damage caused to the
applicant by serving her poor-quality food is to be examined as
non-pecuniary damage.
The
Court therefore rejects the applicant’s claims under this head.
B. Non-pecuniary damage
- The
applicant claimed EUR 1,000,000 for damage caused to her reputation
as a business person and for suffering caused by the inhuman
conditions of detention.
- The
Government considered that the sum claimed was extremely exaggerated
in comparison with the awards made by the Court in similar cases in
respect of Moldova.
- In
view of its finding of a violation of Articles 3 and 6 of the
Convention and deciding on an equitable basis, the Court awards the
applicant EUR 4,500 in compensation for non-pecuniary damage.
C. Costs and expenses
- The
applicant left to the Court’s discretion the amount to be
awarded under this head.
- The
Government considered that the applicant made no claim under this
head.
- The
Court observes that in order for costs and expenses to be included in
an award under Article 41 it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
- In
the present case, the applicant did not claim a specific amount and
did not show that she had incurred or was going to incur any
expenses. At the same time, the Court considers it reasonable to
award the applicant the sum of EUR 100 for incidental costs and
expenses.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3
(concerning the conditions of detention) and Article 6 § 3
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 3 of the Convention as regards the conditions of the
applicant’s detention;
- Holds that there has been a violation of
Article 6 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Moldovan lei at the rate applicable at
the date of settlement:
(i) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage; and
(ii) EUR
100 (one hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
